Strategist, entrepreneur and commentator Craig Coogan examines issues with his unique perspective. NOTE: The views expressed in this blog are of the author (Craig Coogan) alone. They do not represent any organization, client, or business that he may be associated with. You are welcome to comment below. Thank you for reading!

Thursday, October 6, 2011

Third Branch or Third Wheel?

The first Monday in October marks the day that the Supreme Court starts their session for the year. By June they will have rendered their decisions. The Supreme Court symbolizes the importance that the justice system holds in American society. Justice is revered by Americans around the world with the recent acquittal and release of Amanda Knox getting hurrahs from Americans and the media. It was just a few weeks ago that two Americans were released by Iran after having been accused of espionage but never given a trial. Punishing people without due process is outrageous to most Americans.

The framers of the Constitution intended the three branches of government to be a “checks and balances” system. The judicial branch oversees the court system of the U.S. Unlike a criminal court, the Supreme Court rules whether something is constitutional or unconstitutional. It is suppsed to be equal in stature to the legislative branch (which make laws) and the Executive branch (which makes laws official and then sees to their implementation).

What happens, though, when two of the branches of government undermine the third?

There are 95 judicial vacancies in the U.S. Federal Court system. Only 45 nominations have been approved by the 112th Congress (about 1/3rd). Of the 95 vacancies, the Executive Branch has only nominated 56 to fill them. So even if they were all magically approved, there would continue to be at least a 5% gap. The length which it takes a nominee to be approved is the longest in history: 78 days for consensus candidates. (It was 28 days under Bush #43).

Even more than the bickering and delays over filling the judiciary with qualified personnel, the foundation of the purpose of the judiciary is now in jeopardy. The Fifth Amendment of the U.S. Constitution states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury … nor be deprived of life, liberty, or property, without due process of law …”

U.S-born cleric Anwar al-Awlaki was killed last week in an air strike in Yemen by a joint CIA-U.S. military operation. This follows other targeted killings and the high profile assassination of Osama bin-Laden May 1.

None of the targets are people that I’d want to hang out with or probably even know. The hate they spew forth is repugnant and the crimes that they are accused of committing are as base as humanity knows. They are due every right under Due Process as anybody else before punishment is inflicted.

Wait. No way. We’re at war so we can kill them with impunity.The Fifth Amendment specifically carves out an exception! “…except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger…”

The U.S. is not at war. Under that pesky Constitution, Congress must declare war, but it hasn’t. It’s relatively easy: go into session and vote. Majority rules. Done deal. That hasn’t happened since World War II. OK, so we’re not at war. But these guys are terrorists. Evil personified. They are a public danger!

Drug dealers push their poison on today’s youth. They take over parts of our cities and run them like their own fiefdom. Congress and many Presidents have called it a Drug War. The Government has spent trillions trying to win that war. Why not just shoot the dealers and be done with it? It’d clean up the streets, keep the prison population low, reduce drug use…an all around win-win. Drug Dealers are clearly a public danger.

11 Muslim students got up and disrupted a speech by an Israeli Ambassador. Instead of stripping the First Amendment guarantee of freedom of speech and freedom of assembly that got 10 of them sentenced to probation and community service, why not just kill them? Disrupting an important person’s speech is dangerous and puts the public at risk! (Following this logic, let’s do the same to those nutty Tea Party people…and those crazy Socialists.)

Silly? Extreme? Perhaps. The point is that under the U.S. Constitution it is not up to one person to decide whether another person lives or dies, no matter what they say or do. That’s our history. That’s our pride. That’s what defines and distinguishes America from other countries, and other democracies.

The beauty of a country based on the Rule of Law is that there is a system of punishment based on rules of evidence. It’s laborious. It’s messy. It doesn’t always work the way the public wants (OJ? Casey Anthony? Gore v Bush?). But it’s the system we’ve got and it worked pretty well for the last couple of centuries.

The U.S. killings of individuals is the most significant constitutional issue of our time. Where is the Supreme Court on all of this? Nobody has brought forth a case that allows them to weigh in. Sure there’s plenty of case law supporting that military action is fine during times of declared war, but what in times of undeclared but defacto war? Is that a distinction without a difference?

Just last week a man in Massachusetts was found testing out a drone to attack within the U.S. He was arrested. Not sure why he wasn’t just gunned down right then and there. By some miracle he is getting his day in court. Maybe the justice system isn't quiet the third wheel yet.